Limitation application: evidence of right of action & decisiveness of a material fact

Barnes v Smith & Ors [2011] QSC 259

Issues: an application to extend the limitation period pursuant to s.31 of the Limitations of Actions Act 1974 (Qld) where all issues were in dispute. The issues of means and knowledge and prejudice were resolved in favour of the applicant.

However, in the absence of evidence both as to the applicant’s case on liability and also on the issue decisiveness of the material fact, McMeekin J dismissed the application. In respect of the evidence for the decisiveness McMeekin J found Dr Kahler’s opinion was unreliable because he had not been provided with a full clinical history and records. Furthermore, there was no evidence as to why the learning of the need for surgery affected the applicant’s quantum of the claim.

A Right of Action

[40] In order to satisfy the test in s 31(2)(b) of the Act an applicant must be able to point to the existence of evidence which, it can reasonably be expected, will be available at trial and will, if unopposed by other evidence, be sufficient to prove his or her case: Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at pp 434-435 per Macrossan CJ.

[41] The respondent has put in evidence a form bearing Ms Barnes’ signature which contradicts Ms Barnes’ claim not to have been told about the danger of twisting when lifting. Accepting that the respondent‘s evidence is relevant to the issue – and I think it is not as the quote from Macrossan CJ‘s judgment in Wood shows – having an employee sign a document hardly discharges the employer‘s duty to provide a reasonably safe system of work and to properly train and supervise.

[42] Nor is it to the point to assert that the respondent claims that Ms Barnes was rushing and hence adopting an inappropriate system of work. Those are matters for the trial, if there is to be one.

[43] More troubling is that the applicant has not advanced any evidence that the repetitive movement of a 20-24 kg weight in the manner that she adopted on the day in question involved forces that were liable to injure the spine of a person of normal fortitude. It is not to the point that in numerous cases over the years plaintiffs have succeeded to awards of damages where the weights involved have been no greater – each case is required to be proved on its own set of facts.

[44] The respondent has put in evidence a document entitled ―Manual Handling Management – Injury Prevention‖ which is said to be an information paper which provides ―minimum guidelines on manual handling within the workplace to ensure your safety. This was the document that the respondent provided to the applicant as part of her induction. It speaks of risk identification including asking ―Do I have to twist? and ―Do I do a lot of repetitive actions…? It points out that the risk of injury increases with frequency of activity and the force required to handle a load.

[45] That is the full extent of the evidence touching on the issue. The generalisations set out in the first respondent‘s document do not advance matters very far. Presumably evidence can be obtained that would support those generalisations. But the crucial issue is: did the work complained of expose the plaintiff to an unnecessary risk of injury that could have been avoided? Does a plaintiff succeed in a case against the employer by proving that they have been required to lift and move weights from the floor to a height of 55 cms and then place those weights behind them when the weights in question were between 20 and 24 kgs, combined with the knowledge that is set out in the employer‘s document? I do not think so.

[46] I appreciate that the test here is undemanding and that the standards imposed on an employer at common law to prevent or minimise risk of injury are high. Despite that I am not satisfied that the applicant has established that she has an action on the right of action.

Decisive Character

[48] Section 30(2) of the Act provides that for the purposes of s 30 ―appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.

[49] In determining whether a newly learned fact has the necessary quality of decisiveness an applicant ‗must show that without the newly learned fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it‘: Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 per Macrossan J at p 333.4

[50] Relevant on this point too is the observation of Connolly J in Sugden v Crawford [1989] 1 Qd R 683 at p 685:

“Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied. Without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action …”

Discussion re Decisiveness

[53] The crucial questions are: what are the prospects of success of the proposed surgery and what will be the impact on Ms Barnes’ working capacity assuming a successful outcome post surgery. There is no evidence about these matters.

[54] I suspect that very few people today, informed as to the costs and risks, would bring proceedings for damages unless there was the prospect of an award of damages for future economic loss. Absent that component very few litigated claims would be worth pursuing. I have no evidence to guide me as to whether there is any realistic component of such future loss here.

[55] The question for me therefore is whether I should speculate, in the absence of evidence, that opinions to the effect that the injury is a permanent one and that it therefore requires surgery, convert an action from one not worth worrying about to one that ―a reasonable person knowing those facts and having taken the appropriate advice on those facts would consider had sufficient prospects of the proceedings ―resulting in an award of damages sufficient to justify the bringing of an action.

[56] An educated guess is that Ms Barnes would have an entitlement to an award in the vicinity of $100,000 – $120,000 assuming that the surgery restored her to a state that enabled her to carry out manual work again with some modest allowance for the risks inherent in every surgical procedure. In the absence of evidence about prospects of success of the contemplated surgery nothing more can be said.

[57] I am not at all sure that a reasonable person appropriately advised would pursue an action of this type with that result given the constraints on recovering costs6 and the risks involved.

[58] I have been considering the question of whether the opinions in question would justify bringing an action in the monetary sense. There remains the issue of causation.

[59] Significantly, if Ms Barnes was unaware that she could causally link the continuing disabling condition of her spine to the subject injury then, to adapt Connolly J‘s approach in Sugden, a reasonable woman, appropriately advised, would not have brought the action on the facts already in her possession. She relies on the opinion of Dr Kahler to establish credible evidence of a link between her present disabling condition and the employment activities of 23 December 2005.

[60] The significant difficulty for the applicant however is that Dr Kahler had an incomplete history. In fact it is far from clear what history Dr Kahler had. He has not apparently spoken to the applicant with the medico-legal issues in mind. He was consulted solely to advise on current treatment. The respondents argue that being so, his opinion cannot be decisive as it is inherently unreliable.

[61] Whether Dr Kahler assumed continuing back pain or discomfort from 2005 is not evident. He did not know of periods of nine months without pain. He did not know that the location and quality of the pain had changed. While he saw from the GP‘s notes that there had been sciatica he apparently had no detail at all of the nature and extent of it. He was unaware that it predated October 2009 save from what he read in the notes – one episode in February 2006. Ms Barnes said that she rarely went to the doctor and so the notes were hardly illuminating. Accurate understanding of these matters would seem to me to be important in determining the aetiology of the condition. That is especially so against a background of Ms Barnes continuing in employment, both at the hardware store and at the tavern, that involved significant lifting activities over a period of four years after the onset of pain in December 2005.

[62] No reasonable person would accept an opinion, uninformed as to crucial facts, as reliable or as determinative of a decision on whether the proceedings had ―a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action.

[63] While I accept that without evidence of the cause of her ongoing pain, and it can only come from medical practitioners, and probably from specialists, an essential link in the applicant‘s proof was missing, I cannot accept that she yet has that proof.

[64] In my view the opinions relied on do not have the necessary quality of decisiveness.

4 Cited with approval in Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306; Berg v Kruger Enterprises [1990] 1 Qd R 301; Hintz v WorkCover Qld & Anor [2007] QCA 72 at [38] – [39].  

Brisbane Barrister – David Cormack

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